Free-speech precedent gives new power to lawyers

The impact of the Supreme Court’s 5-4 ruling in January that public employees cannot be forced to fund public sector unions continues to ripple across the legal landscape.

In the latest case, the Supreme Court threw out a lower court ruling allowing North Dakota to force lawyers to fund state bar associations with which they disagreed politically.

The Goldwater Institute, which is defending the state bar in the case, said that without issuing a full opinion, the justices ordered the lower court to reconsider its holding in Fleck v. Wetch, in light of the Janus case.

Arnold Fleck, a North Dakota lawyer, sued in 2015 to strike down a law requiring all attorneys in North Dakota not only to pass the state’s bar exam but also to fund the state bar association.

But the association uses the funds for political activities, and some lawyers disagree with its positions.

Eighteen states – including the largest, California and New York – do not require attorneys to join bar associations, the Goldwater Institute noted.

“And because the association spends dues on political campaigns, Fleck found himself in the same position as the teachers in the Janus case: forced to subsidize political activities he did not support. In fact, after Fleck had publicly supported, and contributed money to, a state ballot measure relating to child custody cases, he discovered that the bar association used his member dues to help fund a $50,000 campaign against the same measure,” the institute said.

A federal appeals court ruled against Fleck last year, determining a bar association opt-out program was viable.

But then the Supreme Court ruled in Janus that “allowing a person to opt out isn’t enough.”

“Instead, the First Amendment requires that a person be asked before his or her money is taken to subsidize a political campaign.”

The newest Supreme Court ruling sided with Fleck and ordered a lower court to reconsider in light of the First Amendment and the Janus reasoning.

“This is an important first step towards extending Janus protections to attorneys,” said Goldwater Institute Senior Attorney Jacob Huebert, who was on the legal team that won the Janus case. “The same principles apply here that applied there: The government can’t take people’s money to pay for other people’s political speech without asking first.”

“This is a major victory, not just for Arnold Fleck but for attorneys like him across the nation who have been forced to fund speech they don’t agree with. North Dakota’s take-first, ask-afterward approach violates the First Amendment, which says that people should be able to voluntarily opt in to political speech,” said Goldwater Institute Vice President for Litigation Timothy Sandefur.

He explained the next move will be in the 8th U.S. Circuit Court of Appeals, which is tasked with providing a constitutional resolution to the dispute.